Evidence from the Support Not Separation Coalition to the Nuffield Family Justice Observatory – New Consultation on Remote Hearings

Background 

In January 2017 we published our Dossier Suffer the Little Children & their Mothers.  Since that time we have been contacted by over 250 mothers (and some families) from across England and Wales who are fighting through the family courts against children being taken into care, forced adoptions, and violent fathers being given contact and residence.  The trends shown by current cases and the experiences of separation echo those described in our Dossier three years ago.   Our experiences are confirmed by the Ministry of Justice Review of the family courts published in July which found that sexism, racism, disability and class discrimination are rife and that the family courts regularly grant abusive fathers unsupervised contact with (and sometimes residence of)  the children.  

LAW co-ordinates the Support not Separation Coalition whose members so far are: Association for Improvements in the Maternity Services; Black Women’s Rape Action Project; Centre for Social Work Practice; Global Women’s Strike; Milk of Human Kindness; Movement for an Adoption Apology; Payday men’s network; Psychotherapy and Counsellors Union; Scottish Kinship Care Alliance; Single Mothers’ Self-Defence; WinVisible (women with visible and invisible disabilities); Women Against Rape; former social workers, teachers and other professionals.   See SNS statement of aims here.   We run monthly self-help meetings where mothers share their experiences and exchange advice and information with each other.  Our evidence to this Consultation reflects the experiences of women we are working with.    

A snap shot of 17 women in our network who have had remote hearings since lock-down began.

15 were victims of domestic abuse.

12 are in dispute about contact or residence with abusive fathers. 

11 are women of colour; in addition one Eastern European immigrant.

For 9 women, English was not their first language.

Two are dyslexic, one cannot read or write, one has a learning disability and a very low reading age.

12 were represented.

Several have mental health issues and all are traumatised as a result of going through the family court system – in some cases for many years.

Two had children removed from their care in remote hearings.

All remote hearings except one were conducted on the phone.

The courts involved include Central & East London, Manchester, Southampton, Newcastle DA court, Birmingham, Warwickshire, Barnet and Portsmouth.

Key issues raised by remote hearings are:

Going through family court hearings often for many years is invariably stressful, distressing and often traumatic because of the systemic discrimination mothers face.  Underlying everything is fear of children being taken away, or forced into contact with abusive fathers.  These problems are greatly exacerbated by remote hearings:

The level of technology is very poor, hard to use and often doesn’t work.  In our experience most hearings are by phone.

Not being able to speak to their lawyer/McKenzie friend or advocate during the hearing (unless they could do WhatsApp) and so feeling very isolated and afraid, adding to what is already a very stressful situation.

Advocates’ meetings which usually take place just before court begins can include a McKenzie friend/advocate, but this does not happen with remote hearings.  So a mother doesn’t know what her solicitor may be discussing with the other parties.

Having to worry about children over-hearing, coming in and out of the room.  During lockdown it was impossible to secure childcare.  In the most extreme case, a mother had to go into the garden shed to take part in her hearing!

Mothers told their children would be taken during the hearing were of course devastated, exacerbated by being on their own with no support.  We have been told by barristers that there has been a significant increase in children being removed from their mothers/families since the Covid19 lockdown started – this is extremely worrying and must be stopped.   No children should be removed in the course of remote hearings.

Not being able to follow proceedings because of language difficulties, technical issues, dealing with large volume of papers – either because English was not their first language, dyslexia, not being literate, not being able to ask their lawyer questions.

Sometimes the court mutes everyone and because it is hard to unmute it can be very difficult for the mother to speak, so she is effectively silenced.

Being incorrectly translated by the court appointed interpreter but not feeling able to interrupt and say so for fear of being seen as “disruptive”.

Not being able to see (and in some cases hear) the other parties which puts them at a disadvantage – not being able to see body language of professionals, judge etc

Many felt very uncomfortable reintroducing to their own home (a place of safety) the voice of a man who abused and controlled them; two mothers felt more able to deal with this than they would in a court room, because they felt safe in their own home.  This was a minority view. 

Orders for unrepresented women that are usually given on the day are hard to get hold of and chase up.

It is extremely hard to respond to the Judge over the phone and therefore difficult to make alternative proposals based on how the Judge is reacting.

In some cases the women had no support during the hearing as they had no other form of communication but the phone they were on.

At home it is difficult to access all the correct paperwork.

Being disturbed by deliveries/front doorbell etc.

From the direct experience of volunteers from LAW who attended hearings remotely as McKenzie friends:

• One mother we know was disconnected from her case and was not dialled back in. Her children were being adopted and the case went on without her. The case went on for several hours while she was excluded, not knowing what was going on. She was frantic and distressed.
  • One woman had a toddler she was trying to deal with and feed at the same time. She was distracted and could not take in the proceedings.
  • One judge asked our volunteer how could she be a McKenzie friend if she was not in the same room as the mother. She said she was talking to her on another device but the Judge questioned this – he did not believe it. Interestingly no lawyers were asked this question.
  • A volunteer was dialled into a hearing and was the only person able to get into the court. The mother could not get into court and nor could Children’s Services or CAFCASS. The translator had not been organised.  The hearing had to be adjourned.
  • One mother was not told whether the hearing was in person or remote so attended court only to find it was remote. We had called and emailed the court prior to the hearing but received no response.
  • At several points during one hearing it was very difficult to hear different parties, and almost impossible to hear the interpreter, so the mother had no idea what was being said.  
  • One court hearing had multiple delays – we were not informed of what was going on and had no one we could contact. We were left waiting from 10am till 3.10pm. If we were in court the Judge’s clerk would at least keep us informed.
  • A Judge spent 40 minutes trying to explain to a translator how to use the court technology and gave up in the end as the translator could not use the computer. The woman who he was translating for could not access any technology so he had to be on the phone translating every word being said to her as she could not see or hear any of us. As he could not mute his computer it meant that a great deal of time was wasted in translating every sentence publicly rather than going on mute to talk to her.
  • In some cases those in court said that they were trying to connect to a McKenzie friend but we know from messages from the mother that they were not actually calling. The pressure is then on the mother to go ahead without her advocate rather than delay the hearing further.
  • Mother on a hearing was constantly dropping offline using the court system.
  • On one video hearing the Judge was in a bedroom and his unmade bed could clearly be seen behind him.
  • A Judge asked a mother a question and demanded an answer straight away, giving her no time to consult her McKenzie friend or allow for technological time delay. He got cross when she did not answer straight away.
  • A volunteer was disconnected from one hearing and only able to get back into the hearing because unusually the court clerk had given her his phone number (mistaking her for someone else) so she was able to ask him directly to reconnect her.
  • In one hearing only the Judge and our volunteer were able to connect and they had a conversation about technology together as no parties could attend.  After about an hour and a half, the hearing went ahead as the parties were able to join.

More experiences of remote hearings (all mothers’ names changed)

Serena – victim of DV in court about contact

When I had my hearing the kids were at home which was difficult and I had to go out to the garden shed. But then there was no guarantee that if the neighbours whose gardens are touching mine, had been sitting in the garden, they would not have heard anything.  But I had no choice, because the judge specifically asked is my daughter away from me. So the only option I had was to go in the shed. I asked the barrister if the call drops or anything “Will you call me back?” That was one of my fears. And I couldn’t communicate with my barrister during the hearing – I’m not very technical and I couldn’t figure out using WhatsApp at the same time as listening to court.  So all you can do is listen and you feel left out, like you’re not really part of it even though it’s your case. 

It was difficult not having that that physical support there, because I was just totally on my own in the shed, worrying about being overheard by neighbours because my shed backs on to their garden. 

It’s easy for them to say [they need to do it] remotely because they want to get these cases over and done with, but it’s unfair when being a victim of dv, and what you’ve gone through to be there on your own. It’s just bad enough in court. But, you know, like [another mum] said, she gets an upset stomach. I thought it was just me. I thought it was something wrong with me. And I literally five days before, my stomach just turns, you shake, you can’t sleep. Your heartbeat is beating so fast. It’s as if anytime your heart’s just going to come out, and you just can’t settle yourself down. And when you’re not very good with technology, if it cuts off, you panic.  There’s so much to it, but you know, they just don’t seem to care.  

Asma Begum of Soul Sisters (Manchester) is the McKenzie friend for a mother whose four children are with their father.  Harriet is an African immigrant, English is not her first language and she does not read or write.  

Asma says: Harriet was alone, she’s already distressed and suffering mentally. Because obviously, all her four kids have been taken off her, but then having to do it on her own in her own home. It’s made her even more stressed, sleepless nights, her anxiety increased. And there was a worry about technology as well.

The solicitor told her at the last minute about the hearing. She did not prepare her for it, with the paperwork and things like that. Harriet has felt that her instructions have never been followed. And being on this remote hearing, it’s been even worse – she feels she has been literally silenced.

When I was able to be there with her in person, it really helped because every time she’s been on these hearings, she’s been emotionally upset. And could you imagine if she was at home on her own, and if I wasn’t there, she would have just been depressed and low. In the court you can hold it together, because you’ve got the solicitor with you, you can see the judge’s face, you can hear people more.  But when you’re already struggling, understanding and portraying what you want to say, you’re at home and not in court, the judge can’t see you, it’s even harder. 

It’s very difficult, because English is not her first language and she’s struggling to understand, she’s having to double concentrate.  Obviously the court uses different words, different language. So I have to say I will tell you what’s been said after the whole thing is over.  But if someone doesn’t know they can have a McKenzie friend, that would be really difficult.

The interpreter wasn’t interpreting correctly. So when Harriet said she, the interpreter said he to the judge. Now, how do you correct these things on the phone? Because then it looks like it’s rude, you’re interrupting. You think, well, if I mention this little thing, is it going to sound like I’m being picky?  Because the judge is an authority figure, they are the decision makers, you want to make sure you don’t do anything wrong. But if you don’t say anything then it’s too late. So it’s really important to be in person, because you could indicate to your solicitor or write them a note and then the judge can see that the mum is just trying to make sure the case is running correctly, with the interpreter explaining things correctly, so that there’s no misunderstandings.

There needs to be a process put in place, if they’re going to do remote hearings, that the person feels comfortable and everything is explained to them, including to let them know they can have a McKenzie friend as well as a solicitor, for support.

Harriet says: My solicitor told me ‘Don’t cry. Don’t get emotional’. I know if I say anything, I will start crying, so I won’t say anything. Because if I continue to cry like that, they’ll think I’m not fit to be on my own hearing and I was really worried that anything I do will go against me and I won’t get any contact with my children.  And sometimes my solicitor said something that I didn’t agree with but I couldn’t correct her.  What they have to realise is, it’s such a serious such thing, a court case, especially doing it remotely, and then the solicitor is not explaining when already she knows that I am upset. 

Toni, victim of DV in court proceedings for 4 years over contact

The difficulties I had were … the children were at home, because we were in lockdown. And the school was closed, and there was no childcare facility.  So that that was one difficulty, and especially when it’s been mentioned how children are possibly overhearing inappropriate conversations or being exposed to anxieties. That was a situation that may well have happened, and it was completely out of my control.  But then it would have come back accusing me of “emotional abuse” of the children.

The other concern was the fact that I couldn’t have anybody with me, both because of lockdown, and because I couldn’t have anybody here. Whereas in court, my solicitor would have been right beside me. And I also would have had my Harbour support worker, and my police support worker, who always come to court with me. So I would have had three different support mechanisms, one in court, and two outside of court.

It’s very difficult because I wasn’t given the opportunity to speak. And it’s the visual as well. It was a telephone directions hearing, so when things have been said and agreed upon I can’t object.  In court you could shake your head, you could put your hand up, you could write a note and pass it to your representative.

I was lucky in a way that my solicitor is quite tech savvy. So while we were on the phone, she was WhatsApping. “Are you in agreement? Are you happy for me to try and secure this judge moving forward?” And I could come back, “Yes”. Not everybody has the ability to do that. Not every solicitor is that technical, and we shouldn’t be relying on that. Everybody should go at this with the same tools being available.

I had to confirm that the children weren’t in the room but from the other side I’m not sure what was going on because there was constant noise. The father wasn’t on mute. The judge made a sweeping comment, “Can everybody control the noise in the background?” but the background noise was a little bit off-putting.

For the kids to be told not to come into the room means they realise it’s something important, it’s probably about Dad, it’s probably court. So that triggers their anxiety to know there’s something going on behind that back door.

What I would like to happen at my next hearing is to at least have somebody in the house eg my mom who often comes to court, if she could be in the kitchen — just as a bit of a support.  My anxieties have been highlighted in all of the reports, you know, I’m anxious when I hear the father or see him.  And actually I’m being forced back into that situation with no support.

I was on the phone, and I did have my laptop, and most of my documents are stored on the phone. But the latest bundle of documents is about 112 pages on the laptop, and you can’t do a keyword search because the document is protected. So if you want to refer to something you actually have to go through every document. I don’t know what software they use but there is one that puts everything into the right chronological order which is very easy for them to do but it doesn’t work when you’re trying to find things.

I always get an upset stomach before and after court, and it probably takes me a good four or five hours to calm down after. And that’s from shaking, from the jelly legs . . . And it’s the same for remote hearings.  It is less stressful because I don’t have to travel.  During my last court appearance, the father followed me to court because we were both coming from the same area.  And he was right behind me the whole way.

But the nervousness and anxieties around it are still there, it’s just the travelling element, the time duration…  It was quicker than a normal hearing would have been, because we’re not waiting around – the hearings tend to start on time. 

I think in domestic abuse cases the father has an advantage by not being seen, because although they might be ranting in front of the judge, what the judge can’t see is their body language and the ways that shows their aggression.  In my case, the father’s never held back. He’s been very vocal in the waiting area in the court.  He’s actually talked over the judge before in court, he’s shouted out in the middle of the judge talking. You know, he has been his usual delightful self. So it’s unfortunate that they don’t get to see that.

Nicola Mann from Women Against Rape gave evidence during a part-remote fact-finding hearing

I found the use of technology very difficult.  After we got online, they couldn’t hear what I was saying. And, if I hadn’t sorted it out, I don’t know what would have happened, would it have been delayed another day?  You’re praying that nothing breaks down because their system’s so ancient and antiquated.   And that’s a massive part of it.  If you’re giving evidence in court, there are no other distractions. But with the best will in the world, you can’t control if somebody’s suddenly going to knock on your door, or ring your bell, and you’ve got to make sure you’ve got your house phone turned off, so there are no interruptions whatsoever. And what I found really hard, was when they said everybody stand up, and I could see this massive courtroom and there was just the mother on her own, with no solicitor next to her because of social distancing.   The mum was just on her own with a barrister and her abuser and that’s it.  To be so isolated in one of the most important hearings of someone’s life is absolutely awful.

Sameena – victim of DV in court over contact  

Since March this year I’ve had a remote hearing every single month, unfortunately, and then I’ve got another two lined up.  I have a study room, but I’m still very cautious where my daughter may be around, but obviously I have to say I’ve got a meeting as work or something. But she’s 10 years old and she’s probably thinking what’s going on, there’s a secret. I personally feel that I’m happy that I don’t have to go to court. I have a very upset tummy when I’m going to court or even when I’m going to have a remote hearing. I prefer to have it at home. I really do. It’s the travel that makes me physically sick.

 I had technical problems where I got disconnected. The judge got the clerk to send me an email and then log in again. And because I live in the countryside, the reception is not very good, it plays up. The judge said he would not continue until I could log in and so that was okay

Annette in a PLO hearing

By the time we had the remote [PLO] meeting, we’d had a few months of accessing the zoom software for remote lessons from school. So we were au fait with zoom by this point. My three children went out into the garden with my husband. 

The big problem was that I couldn’t actually hear anyone who was in the meeting.  It was like the sound you get which is like talking underwater. In the end I had to listen in on the phone through my solicitor while I was watching proceedings on the computer. I had to rely on my solicitor relaying things to me, I had to relay what I wanted to say through the solicitor, who then put it to the other side.  I never got to hear their responses. I was very distressed not to hear what was going on, I thought that was quite a basic thing. I didn’t feel able to say, I want to leave the technology, and re-enter the meeting, to see if the ghost in the machine disappears, and it all works OK.  I felt I would be imposing upon them to do that. So I put up with the inadequate communications.

On the plus point, my solicitor was great. I could see from the body language of the other side that she was a bit of a thorn in their side, which was quite satisfying. But even so I don’t think she relayed everything to me and I couldn’t really tell how well she was representing me.  I had no choice but to trust her as an experienced legal counsel and to accept that I couldn’t hear my own meeting.   If a similar situation happened again I would actually say no, until the audio glitch gets sorted out, we’re not having the meeting.

30 September 2020

Legal Action for Women co-ordinates Support Not Separation

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Tel: 0207482 2496

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